Engineering the endgame.

• Author: Katz, Ellen D.
• Position: Racial discrimination remedies

This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions.

The Article seeks to map out a better response to changed conditions than the all-or-nothing options that presently define the debate. It argues that longstanding remedies should neither be terminated nor continued indefinitely, but instead should be adapted to better address changed circumstances. Specifically, the Article calls for a shift in remedial focus away from the effects of past discrimination to the local institutions that must deal with those effects most directly. It calls on courts, legislators, and voters to adapt remedies so that they provide institutions of local governance with the skills and resources needed to operate fairly in an environment inexorably shaped by past discrimination and in which some effects endure.

TABLE OF CONTENTS INTRODUCTION I. EXISTING RESPONSES A. Expiration B. Compliance C. Normalization D. Repudiation E. Attrition II. AN ALTERNATIVE: ADAPTATION A. Promoting Change B. Adapting Institutions C. Nascent Adaptation 1. Protecting Engagement in LULAC v. Perry 2. Looking Beyond the Majority-Minority District CONCLUSION INTRODUCTION

When should a remedy for racial discrimination end? The question comes up again and again. Has the time come to scrap the regional provisions of the Voting Rights Act ("VRA")? Or to dissolve a longstanding school desegregation decree? Is it now appropriate to get rid of affirmative action in university admissions or to discard the disparate impact tests that inhere in federal voting and employment law? Put differently, when is enough really enough?

Some effects of past discrimination are more lasting than others, and people and institutions differ in their willingness and ability to address persistent problems. But these factors do not best explain why some remedies have been tossed out or eroded substantially while others have been renewed or withstood challenge. It turns out that the durability of a remedy depends far more on the way key decision makers respond to changed conditions than on the conditions themselves. In particular, durability hinges on how such decision makers respond to a landscape that is, to varying degrees, much improved, but in which troubling problems nevertheless persist.

This Article examines the responses of two such decision makers. It shows that the U.S. Congress and the Supreme Court of the United States have responded quite differently to changed conditions when they evaluate longstanding remedies. And yet, I argue, their varied responses share a common flaw.

For its part, Congress has generally responded to change by staying the course. It has voted repeatedly to extend remedies beyond expiration dates and to restore those weakened by judicial interpretation. This stance suggests the view that improved conditions are dependent on a remedy's continued operation, and that persistent areas of deficiency are best addressed by maintaining existing remedies. (1)

The Supreme Court, by contrast, has been more inclined to view change as cause to terminate a remedy. The Court has repeatedly pushed for closure by tying the termination of existing remedies to relatively weak or muddy criteria, or by relentlessly scaling back the remedy in sequential moves. (2) Defending this stance, the Justices have argued that intervening factors fuel persisting problems and that the discrimination under remedy is no longer the reason these problems endure.

These very different responses to changed conditions share a defining characteristic. They confront the altered landscape as if it were an on/off switch. With few exceptions, (3) both Congress and the Court have treated existing remedies as fixed in structure. Time and again, they have opted against adapting a remedy to better serve a changed environment, and instead have understood themselves to confront a stark choice: either terminate the remedy or let it continue, substantively unchanged. (4) In other words, remedies remain fixed until they are terminated.

This result is a serious problem. It has led the Justices to precipitate termination prematurely because the only alternative they see is the status quo. (5) But improved conditions are rarely as secure and unequivocal as this stance allows. Evidence may show, for instance, some diminution in racial polarization among voters, or in the racial achievement gap, but such encouraging trends require cultivation. Cutting short a remedy destabilizes improved conditions, and forgoes the opportunity to develop practices that might have made and kept them more secure. (6)

No less problematic, however, is Congress's proclivity to retain a remedy unchanged despite changed conditions. For one thing, this course is constitutionally unsustainable. While some improved conditions are fragile, the existing remedial regime is even more unstable and the Court is sure to scrap it in short order if left unchanged. (7) Resistance might briefly prolong the project, or select components of it, but staying the course is not a viable long-term option.

Nor should it be. The conditions that prevailed when most remedies for racial discrimination were first instituted are, thankfully, no longer dominant. Racial discrimination indisputably persists today, (8) but it is different in scale, scope, and tenor from what it once was. So too, the effects of past discrimination undeniably persist today, but these also now differ in type and intensity from what they once were. (9) Failure to recognize these changes fundamentally distorts and trivializes history. As important, it disserves our present needs by wasting resources, imposing unnecessary burdens, and undermining existing achievements.

This Article seeks to map out a better response to changed conditions than the all-or-nothing options that presently define the debate. The argument put forth here is that longstanding remedies should neither be terminated nor continued indefinitely, but instead should be adapted to better serve changed circumstances. The Article then proposes one way existing remedies might be adapted productively.

Part I identifies five ways Congress and the Court have responded to changed circumstances when called upon to evaluate existing remedies for racial discrimination. This Part labels these responses expiration, compliance, normalization, repudiation, and attrition, and argues that they share a common failing. All offer a blunt choice between termination on the one hand, and continuation on the other. When Congress and the Court respond in these ways, they do not investigate how they might adapt a remedy to better address developing circumstances.

Part II calls for a different response. It urges Congress, the Court, and other key decision makers to respond to changed conditions by adapting longstanding remedies rather than terminating or maintaining them. Adaptation is not a euphemism for either slow destruction or long-term maintenance. Decision makers adapting remedies should reduce or eliminate those remedies that no longer address current problems effectively, but they will also need to expand or reformulate remedial efforts when doing so is necessary to advance remedial goals.

At the same time, a remedy's goal cannot and should not be to create the environment that would have existed had discrimination never occurred. Our culture has been shaped irrevocably by the practice of racial discrimination and by our varied efforts to address it. No remedy can excise that experience. Instead, decision makers should adapt the remedial project with awareness of the enduring ways past discrimination continues to shape the contemporary landscape.

Part II offers one proposal for how this might be accomplished. It urges a shift in remedial focus away from the effects of past discrimination to the local institutions that must deal with those effects most directly. The rampant "constitutional wrong[s]" that longstanding remedial measures were originally created to address no longer inhere in the local institutions subject to them. (10) Work nevertheless remains to be done to ensure that these institutions are not only constitutional, but also that they are constituted in ways that allow for good governance in an environment shaped by past discrimination and in which some effects endure. Congress, the Court, and other key decision makers should adapt existing remedies to ensure these institutions are up to the task. Put differently, a remedy is complete only when the restoration of local control is an informed assumption of responsibility in light of adversity and not just a devolution of power. (11)

A final word by way of introduction. This Article defines a remedy for past racial discrimination in expansive terms. It considers traditional judicial remedies, like school desegregation decrees, imposed, crafted, and enforced by courts to address specific, adjudicated misconduct, (12) and the federal oversight Congress mandated in Section 5 of the VRA to address pervasive, regionally based, race-based disenfranchisement. The discussion, however, also considers provisions of federal voting rights and employment law that bar state and local officials from actions that produce racially disparate impacts, (14) as well as affirmative action plans voluntarily adopted to promote diversity in higher education and other venues. (15)

These measures, of course...